In 1998 the Digital Millennium Copyright Act amended U.S. copyright law in a few key ways. Of most relevance here is the additions it made to 17 U.S.C. §§1201 et seq., which includes the provision:

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” §1201(a)(1)(A)

If one does, they can be liable for damages, §1203(c), or, more saliently for this blog, fines of $500,000 and/or 5 years imprisonment for the first offense and $1,000,000 and/or 10 years for subsequent ones. §1204(a).

I’m posting about it here because at this meeting I plan to kick-off a task force for committee members to get started working on the types of issues covered by this project. If they are something of concern to you, here is one way to get involved.

It was not completely unprecedented in the pre-digital age to penalize acts that at their essence were about doing something without permission. Trespass, for instance, can be criminally prosecuted if someone has entered another’s real property without their permission. But (per the Model Penal Code § 221.2) it is typically prosecuted as a petty misdemeanor, commensurate with the negligible resulting harm. In instances where more serious harm resulted, a harm that could be properly measured in real word dimensions, such as the deprivation or destruction of real or immovable property, then a separate crime could be charged, such as theft – one targeted to address that violent sort of outcome. But even in those cases the crime and its commensurate penalty would hinge on the resulting harm, not the underlying lack of permission (see, e.g., Model Penal Code explanatory note §§ Sections 220.1-220.3). On its own, merely doing something without permission has not been something US law has sought to punish with serious charges carrying lengthy prison sentences.

In Aaron Swartz’s case, however, while his actions, even if true as alleged, resulted in no more measureable harm than an ordinary trespass would have, he was nonetheless charged with multiple felonies.Continue reading »

These actions challenged the status quo, however, and the status quo fought back. For those who treat knowledge as a currency that can be horded, acts to free it are seen as a threat. Unfortunately for Aaron, those people have power, and they wielded it against him. Furthermore, and most saliently for this project, it happened not through private actions, but by leveraging the power of the state to pursue and criminally prosecute him for his efforts.

Thus the parallel purpose of this project is to help advocate for better legal policy, so that we don’t empower the state to punish our innovators for innovating. The disruption they spawn, though perhaps painful for incumbents who liked things as they were, are necessary in order to have a future that benefits everyone.